APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 74-555)

Before Seitz, Chief Judge, and Aldisert and Garth, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

The principal issue presented for decision requires us to construe the 120-day time limitation of Fed.R.Crim.P. 35 in a convoluted criminal proceeding in which a motion for a new trial was filed in the district court after appellant Joseph Diaco had exhausted a direct appeal from his conviction. The post-appeal new trial motion was grounded upon newly discovered evidence. After exhausting his appeal from the denial of that motion, he moved for reduction of sentence; the district court held that because the motion was unseasonably filed under Rule 35, the court was without jurisdiction to reduce sentence. We affirm.

I.

Various aspects of this case have been before this court on three previous appeals and before the Supreme Court on two occasions.*fn1 Briefly summarized, the background includes the following facts.

A.

Appellant Diaco and co-defendants Dansker, Haymes, Orenstein and Valentine were convicted of two substantive violations of 18 U.S.C. § 1952 for attempting to bribe two state officials, and of one count of conspiracy to commit those offenses. Each was sentenced to concurrent terms of five years imprisonment and a fine of $10,000 on each of the three counts. On appeal of their convictions, they raised for the first time the allegation that the government violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by withholding information regarding James Silver, whose testimony might have impeached a key government witness, Arthur Sutton. This court's review resulted in reversal of the convictions of all co-defendants on the conspiracy charge, affirmance of their convictions of one substantive count and vacation of their convictions on the second substantive count. The court did not consider the merits of the Brady claim but suggested that a motion for a new trial under Fed.R.Crim.P. 33 would enable the district court to evaluate the Brady claim in the first instance. After the Supreme Court denied certiorari in the direct appeal on January 10, 1977, all co-defendants moved for a new trial because of the alleged Brady violation and each moved for a reduction of sentence pursuant to Fed.R.Crim.P. 35. Without holding an evidentiary hearing, on June 3, 1977, the district court denied the motions for new trial and for reduction of sentence. The defendants again appealed to this court. The results were that 1) denial of sentence reduction was affirmed; 2) Dansker, Haymes, Orenstein and Valentine were adjudged to be entitled to an evidentiary hearing on their Brady claim; and 3) Diaco was held to be ineligible for a hearing on the alleged Brady violation because other evidence of his guilt was overwhelming. See United States v. Dansker, supra, 565 F.2d at 1264 n.7. Their petition for certiorari on the denial of sentence reduction was dismissed on January 24, 1978, pursuant to Supreme Court Rule 60.

While their petition for certiorari was pending before the Supreme Court, all co-defendants filed new Rule 35 motions for reduction of sentence. The district judge who heard Diaco's motion held that the court was without jurisdiction because the motion was untimely under Rule 35. A different district judge heard the motions of Dansker, Haymes, Orenstein and Valentine, and reduced their sentences from five years to six months imprisonment and three years probation. Diaco, understandably, has appealed the district court's ruling on his motion.

B.

The participation of two judges in the sentencing of the defendants stems from an issue raised in prior appeals of this case in which it was contended that the trial judge should have been disqualified for his investigation of another co-defendant during the judge's previous service as a United States Attorney. That contention was rejected at 565 F.2d 1266-67 and at 537 F.2d 52-54, where this court held that the judge's prior involvement was too attenuated to require disqualification. Nevertheless, the judge voluntarily removed himself from further participation in the Brady hearing for Diaco's co-defendants which had been mandated by the same opinion upholding the judge's qualification. In the judge's words, the co-defendants were "using their alleged reluctance to have me preside at the Brady hearing to delay further the evidentiary hearing, its determination, and, if the determination was against them, their incarceration." App. 160a-161a. His withdrawal was therefore simply to prevent further delay by four defendants who were free on bail some 21/2 years after conviction and sentencing. Consequently, the motions for reduction of sentence on behalf of Dansker, Haymes, Orenstein and Valentine were heard by a different judge, one who had not previously participated in the case. At their hearing, it was stipulated by the government that "Rule 35's time limits do not preclude a reconsideration of the sentence at this time", App. at 105a, apparently opting to terminate the proceedings with a resentencing rather than with further consideration of the Brady claim. Disarmed by the assurance of all counsel that the court had jurisdiction, the judge acted on the assumption that it was within his power to reduce the sentences.

Diaco's contemporaneous motion for sentence reduction, however, was heard by the original trial judge because Diaco's Brady claim had been denied by this court in an opinion stating that he was not entitled to a Brady hearing. The court determined that it was without jurisdiction under Rule 35 and, alternatively, that relief would have been denied on the merits in any event.

C.

Diaco's appeal presents four arguments in support of his contention that the court erred. First, he asserts that his post-appeal Brady claim motion for new trial, appealed to this court and to the Supreme Court, was so inexorably intertwined with his direct appeal that the 120-day limit of Rule 35 must be calculated from the date the district court received our mandate in the second appeal, October 28, 1977, not from January 10, 1977, the date his direct appeal was terminated by denial of certiorari. Second, because the government agreed that the court had jurisdiction to entertain his co-defendants' motion for reduction of sentence filed at about the same time as his motion, the government is now estopped from challenging Rule 35 jurisdiction. Third, the present disparity of the sentences trenches upon his constitutional ...

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